Lacking a quorum, but not lacking the law

An editorial on the FEC stalemate in today’s New York Times suggests that "Lacking a quorum, the commission has been left powerless to issue advisory opinions for candidates, write new reform regulations, open investigations and file lawsuits against violators. The result is a scofflaw’s paradise. The political landscape’s big-money fast lanes are slick enough without having the only traffic controller gone missing."

With all the articles that have been written about this topic, it’s disturbing that the Times continues to peddle the myth that we exist in a lawless age simply because the FEC lacks a quorum.

Bob Bauer has pointed out that the FEC’s lack of a quorum "does not mean that lawlessness will break out all over.  Sophisticated actors know that the law is still the law, and that when the FEC is finally restocked with Commissioners, they are free to pursue the wrongdoing committed during the period of suspended enforcement.  And to the extent that it appears that the mice surfaced while the cats were on furlough, there is the added risk that knowing and willful violations will be suspected and investigated.  Referrals in the worst case will be made to Department Of Justice."

CCP chairman Brad Smith also has noted that "it does not mean that the agency will “shut down.”  Its nearly 400 staffers continue at work.  While a long term lack of a quorum The FEC could lead to large scale interruption in the FEC’s duties, a short term interruption will have little effect on agency operations.  The Commissioners have authorized investigations into various complaints that have been filed, and the staff can carry those investigations forward, gathering facts and analyzing the law, quite some way.  New complaints will continue to be processed uninterrupted.  Respondents will be designated and the complaints sent to those respondents.  Those named then have, by statute, 15 days to reply, and the FEC has long routinely granted at least one 15 day extension.  Once the response is received, it typically takes the Agency sixty days or more, given its resources, to review the allegations of the complaint and response, analyze the matter under the law, and prepare a recommendation to the Commission.  Audits that are already under way will likewise continue.  Pre-authorized regulatory projects will proceed.  The public education and press arms of the Agency will continue to function.  In short, if the congressional deadlock lasts 3 months or less, it will hardly be noticed at all in the functioning of the Agency.  As others have pointed out, the statute of limitations on most FECA violations is five years.  Any inabililty of the FEC to vote on enforcement matters does not suspend the law.  Any offenses that occur in the interim can and presumably will be investigated and pursued once the Commission is back to strength, as it is presumed will happen.  So no one has a “free pass.” Given the realities of due process, serious legal analysis, and appropriate fact finding – realities that, admittedly, the so-called “reform” community has always been unwilling to accept, their regard for constitutional due process being little higher than their regard for the First Amendment – it is and always will be impossible to resolve most complaints before the election.  So the calculus for a would-be lawbreaker has really not changed.